Committee on Tribal and State Court Affairs June 27, 2008, Meeting Minutes

Committee on Tribal and State Court Affairs

MINUTES (unofficial until approved) Committee on Tribal and State Court Affairs Dakota Magic Hotel; Hankinson, ND June 27, 2008

Members Present
Judge Donovan Foughty, Chair, Northeast Judicial District
Judge June Gourd, Spirit Lake Nation Tribal Court
Judge El Marie Conklin, Fort Berthold District Court
Judge B. J. Jones, Sisseton-Wahpeton Tribal Court
Justice Carol Ronning Kapsner, North Dakota Supreme Court
Marilyn Kary
Judge Madonna Marcellais, Turtle Mountain Tribal Court
Michelle Rivard Parks, Tribal Attorney, Spirit Lake Nation; Tribal Judicial Training Institute
Brad Peterson
Judge Michael Sturdevant, Northeast Judicial District (for Judge Tom Schneider)
Judge William Zuger, Standing Rock Sioux Tribal Court

Members Absent

Rebecca Absey, Grand Forks County, Clerk of District Court
Nicole ManyHorses, Court Administrator, Standing Rock Sioux Tribal Court
David McGeary, Director of Juvenile Court, South Central Judicial District
Judge William McLees, Northwest Judicial District

Others Present

William La Roque, Director, Sisseton-Wahpeton Child Support Enforcement Program
Diane White, Facilitator, Sisseton-Wahpeton Tribal Treatment Court Program

Chair Foughty called the meeting to order at 10:00 a.m. He explained that District Judge Tom Schneider, South Central Judicial District, had resigned his membership and he had invited Judge Michael Sturdevant, Northeast Judicial District, to attend the meeting in Judge Schneider's place. He said he had recommended to the Chief Justice that Judge Sturdevant be appointed to the Committee.

Sisseton-Wahpeton Tribal Court - Operation

Chief Judge B.J. Jones welcomed the Committee to the Lake Traverse Reservation, noting that it was the first time the Committee had visited the reservation. He said elected leaders of the tribe were unable to attend the meeting as the Tribal General Council was in session elsewhere. He explained that, while the reservation was created by the same treaty that created the Devils Lake Sioux Reservation (now Spirit Lake Nation), South Dakota does not recognize the tribe based on a 1975 U.S. Supreme Court decision (DeCoteau v. District Court, 420 U.S. 425), which results in complicated jurisdictional issues. He said the tribal court has a three judges: a chief judge, an associate judge, and a child support judge. He said the court has a total of twelve court support personnel. He said the tribal court is a court of general jurisdiction with a caseload of approximately 6,000 cases per year. The court, he said, is in session three days per week. He said the court has several dockets: criminal, civil, drug court, child support, and housing. He noted the drug court recently graduated about 100 participants, which consisted mostly of tribal members convicted of felony drug and alcohol crimes in state and federal courts. He said about 90% of litigants in tribal court are not represented by counsel but the court does not throw out cases based on poor pleadings.
With respect to jurisdiction, Judge Jones observed that criminal jurisdiction is particularly confusing. He explained that about three years ago the Northern Plains Intertribal Court of Appeals held that even though the U.S. Supreme Court had declared the reservation disestablished, that decision did not alter the tribe's treaty rights to regulate its members within original reservation boundaries. Consequently, he said, if a crime is committed on fee land within the reservation there is concurrent state and tribal jurisdiction, while there is concurrent federal and tribal jurisdiction if the crime is committed on trust land. The result, he said, is that there are numerous occasions for jurisdictional arguments. He noted there is additional friction between the tribe and the Court of Appeals because the Court has ruled that under Montana the tribe does not have jurisdiction over divorces involving a tribal member and a non-Indian. He said the tribe is seeking to restore its reservation boundaries, which would require Congressional action and which South Dakota opposes. He explained that there is a constitutional separation of powers and noted that tribal officials have never interfered with the operation of the tribal court even though the court has heard numerous political disputes.

Sisseton-Wahpeton Child Support Enforcement Program

Chair Foughty then welcomed William La Roque, Director, Child Support Enforcement Program, for a presentation concerning the program's operation.

Mr. La Roque first distributed background information concerning the tribal program and about tribal child support enforcement programs across the country. A copy is attached as Appendix A.

Mr. La Roque explained that the tribal program is not automated although research is underway concerning development of an automated system. He said the program is operated under regulations adopted by the tribe, has approximately 1,500 active cases and four caseworkers, and has a yearly grant budget of approximately $825,000. He said the program collects about $450-460, 000 in child support per year. He said payments are processed on a daily basis. He said the program has a total of ten personnel with education backgrounds ranging from associate to masters degrees. He said the program places heavy emphasis on creating a client- and non-custodial parent-friendly environment. He said the program receives about thirty applications per month for services. He explained that South Dakota will honor tribal child support orders but will not enforce the orders.

Justice Kapsner noted that North Dakota's director of child support enforcement has emphasized the importance of sharing information between tribes and the state. She asked whether having a manual system complicates the sharing of information. Mr. La Roque said compiling and sharing information with a manual system is very difficult. He said he is looking forward to the possible development of an automated system.

In response to a question from Judge Foughty regarding North Dakota enforcement of tribal child support orders, Mr. La Roque said he has not encountered problems and enforcement by North Dakota seems much better than South Dakota. He noted that an additional issue with respect to South Dakota enforcement is that all income withholding orders affecting a tribal member must process through the tribal court. He noted additionally that tribal child support regulations provide that tribal customs can be recognized in determining child support amounts. One result, he said, is that the non-custodial parent can meet the obligation by contributing something besides money to the family.

Michelle Parks noted that child support enforcement, as a general matter, seems focused exclusively on money, which may work to the detriment of the child. She suggested the tribal approach may offer a useful enhancement to child support enforcement methods.

Judge Marcellais noted that the Turtle Mountain Tribal Council had recently adopted a resolution directing that tribal court could not accept any more child support cases from the state unless the cases started in tribal court. She said the tribal court has had an excellent relationship with state child support enforcement but, in light of the resolution, the state will not now continue to come into tribal court to enforce child support obligations. The result, she said, is that more problems are being created for families. She said the state is now requesting that all cases involving a tribal member be brought back into state court.

Judge Foughty suggested Judge Marcellais should send the resolution to the Tribal Judicial Training Institute for an assessment of its meaning and scope and to determine whether there any circumstances under which state child support enforcement officials may be able to pursue enforcement actions in tribal court.

Sisseton-Wahpeton Drug Court - Operation

Chair Foughty next welcomed Diane White, Program Facilitator for the Sisseton-Wahpeton Tribal Treatment Court Program, for an overview of the program's operation.

Ms. White first distributed a brochure describing the program's basic operation. A copy is attached as Appendix B. She said the program currently has thirty-three clients. She explained that each client must first agree to seek treatment and the program has a good relationship with Dakota Pride for inpatient treatment. She said a team, consisting of about eight members, helps make decisions for the client and meets twice each month. She said the program consists of four phases, as described in the brochure, and usually extends over a twelve month period.

Judge Jones noted that the program is one in which the tribe receives a significant amount of cooperation from the state. He said tribal members unfortunately have a high incarceration rate, mostly for drug and alcohol-related violations. As a result of discussions with state judges, he said, a judge will often suspend the execution of a sentence of imprisonment, put the person on probation, and require the person to complete the tribe's treatment court program. He said if the person completes the treatment program, probation may be reduced and the conviction may be expunged. In response to a question from Judge Foughty. Judge Jones said the incarceration rate for tribal members is about 40-45%. In response to a question from Justice Kapsner, Judge Jones said the treatment court program is only for adults.

In response to a question from Michelle Parks concerning sources of support for the program, Judge Jones said the program was initially supported with grant funds but those ended. He said the program now assesses each participant a $20 fee per month, half of which is returned in the form of a gift certificate when the participant completes the program. Otherwise, he said, the tribal court does what it needs to do to keep the program running.

In response to a question from Justice Kapsner, Judge Jones said there was an early effort to establish a juvenile drug court but it ultimately failed. A significant limitation, he said, was that there was no juvenile treatment center available.

Michelle Parks said that Spirit Lake tribal court encountered similar problems. She said the most significant issue was that a juvenile would be sent away for treatment, would come back to the reservation clean, but then would be placed back in the same environment and would suffer a relapse.

Judge Marcellais noted that Turtle Mountain tribal court personnel were sent to drug court training sessions and were ready to start, only to have funding for the program withdrawn.

Judge Jones said that if a treatment provider is available nearby, a treatment court program can be run without much in the way of extra funding.

Adam Walsh Act - Implementation - Discussion Cont'd

Committee members then continued discussion of implementation of requirements under the federal Adam Walsh Act regarding establishment by tribes of sex offender registration systems.

Michelle Parks said a significant part of implementing Adam Walsh requirements will be collaboration between states and tribes and the development of memorandums of understanding.

Judge Marcellais noted that the North Dakota Attorney General's office had received a federal implementation grant and Turtle Mountain had recently submitted an application for a grant. It would be helpful, she said, to know what resources might be available from the state through collaborative agreements in the event a grant is received. She emphasized that the tribe has very little funding available for establishing the registration system.

Michelle Parks explained that Spirit Lake had established a planning committee to do time and task planning for implementation and to review personnel and technical needs. She said once a list of needs is identified, then there is a better idea of what grant funds might be needed and in what areas collaboration with the state may be most productive. She stressed that the planning effort, including discussion of a possible memorandum of understanding with the state, is the first stage in implementation of the federal law's requirements.

Judge Zuger noted there are many requirements under the federal law that will impose significant burdens on tribes. He wondered whether it was possible to realistically comply with the law's requirements given the extent of the burden and limited tribal resources.

Committee members agreed additional information should be requested from the Attorney General's office about resources available to the tribes.

Plains Commerce Bank v. Long Family Land & Cattle Co.

Committees members then discussed the U.S. Supreme Court's June 25 Plains Commerce Bank opinion. Brad Peterson distributed a memorandum prepared by Legal Services of North Dakota staff explaining the Court's opinion. A copy of the memorandum is attached as Appendix C. The U.S. Supreme Court reversed an Eighth Circuit Court of Appeals decision, favorable to Indian Country, that the bank was subject to tribal court jurisdiction and essentially held that the tribal court does not have jurisdiction over a non-Indian bank doing business on the reservation.

Judge Jones said it is relatively clear that tribes will not be successful on jurisdictional issues with the present U.S. Supreme Court. He urged that consideration be given to creating a mechanism by which jurisdictional issues can be heard first in state court. He noted that North Dakota state courts tend to be much fairer to tribes on jurisdictional issues. He suggested revising Rule 7.2 of the ND Rules of Court, which governs recognition of tribal court judgments, so that a party can not only enforce the tribal court judgment but a party can also challenge the judgment. He said an argument can then be made to the federal courts that the tribal court judgment should not be overturned because state courts have given litigants a fair opportunity to challenge tribal court jurisdiction. He said Rule 7.2 could then serve as a mechanism by which a non-Indian or Indian litigant could obtain review of the tribal court judgment.

Committee members then discussed the different ways in which Plains Commerce could be interpreted to either substantially reduce tribal court jurisdiction as a general matter or more narrowly limit tribal court jurisdiction based on the particular facts of the case accepted by the Court.

Judge Zuger suggested Plains Commerce could be viewed as a narrowly decided decision that may weaken one exception of the Montana test but strengthen the other.

Judge Jones offered to prepare draft amendments to Rule 7.2 along the lines he described.

America Indian Law Program - University of South Dakota School of Law

Chair Foughty then welcomed Barry Vickrey, Dean of the University of South Dakota Law School, for comments regarding the Law School's Indian Law Program. A brochure describing the program is attached as Appendix D.

Dean Vickrey noted that most law schools do not teach Indian law, which lends greater importance to later educating lawyers about Indian law, particularly in those states with reservations. Additionally, he emphasized the importance of increasing the number of Indian students in law schools. He noted that only about 500 Indian students take the Law School Admission Test each year. He said it is incumbent upon law schools like the University of South Dakota, the University of North Dakota, and other schools near Indian country to do what can be done to educate lawyers and soon-to-be lawyers about Indian law issues and to increase the number of Indian students in law schools. He explained that through a grant-supported project Indian lawyers will be put on the road to visit twenty-five South Dakota and Wyoming high schools with significant Indian populations to discuss what being a lawyer is about. He said if the project is successful, the hope is that the effort can be exported to other areas to enhance the numbers of students interested in going on to law school. With respect to the Law School's Indian Law Program, he said the program has an extensive curriculum with two outstanding professors - Frank Pommersheim, a nationally recognized scholar on tribal courts, and Patrice Kunesh, who has extensive legal practice in Indian law. Additionally, he said, the University's Institute of American Indian Studies has undergone a recent restructuring and it is hoped the Institute will undertake a substantial research agenda. He noted that the South Dakota Supreme Court recently approved adding an Indian law question to the state bar examination, thus joining New Mexico and Washington as the only states to place emphasis on Indian law issues in their bar examinations.

Justice Kapsner noted that Rebecca Thiem, President of the North Dakota Board of Law Examiners, has been lobbying to get Indian law-related issues embedded in the nationally approved test. Dean Vickrey observed that if enough states express interest there may be greater success in including Indian law questions in tests approved by the National Conference of Bar Examiners.

Dean Vickrey thanked the Committee for the opportunity to discuss the Indian Law Program and said he would appreciate any thoughts or ideas Committee members may have about how to increase the number of Indian students in law school. Dean Vickrey can be reached by email at barry.vickrey@usd.edu .

Next Meeting

Committee members agreed the September 26 meeting should be held at Standing Rock.

There being no further discussion, the meeting was adjourned at 2:00 p.m.
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Jim Ganje, Staff